Report | Date: 01/12/2004 | Ministry of Foreign Affairs
R E P O R T
for the period ending 31 May 2004, in accordance with article 22 of the Constitution of the International Labour Organisation, from the Government of Norway, on the measures taken to give effect to the provisions of the
Convention no 111 concerning discrimination (employment and occupation), 1958
ratification of which was registered on 6 June 1966.
Reference is made to our previous report. We can also inform you that on 14 June 2002 a law commission appointed by Royal Decree of 3 March 2000 delivered its recommendations – NOU 2002: 12 Legal Protection Against Discrimination – to the Ministry of Local Government and Regional Affairs. The commission recommended a new act against ethnic discrimination. The law proposal was circulated for comment to relevant bodies on 31 October 2002 with the deadline for submissions set at 1 February 2003. The Labour Inspection Authority was among the consulted bodies.
With effect from 26 March 2004 section 55 A of the Working Environment Act was revoked and a new chapter X A and X B went into effect.
The background to the new rules is Council Directive 2000/78/EC prohibiting discrimination, and establishing a general framework for equal treatment, in employment and occupation. Although EFTA/EEA states are not obliged to incorporate this legal act, Norway has chosen to incorporate it in the EEA agreement based on an assessment of appropriateness and expediency.
A new section 54 A widens the prohibited grounds of discrimination. These were previously race, colour, national or ethnic origin, homosexuality, and homosexual form of cohabitation or disability. The prohibited grounds which have been added to the act are: sex, religion, life view, political views, membership of a workers’ organisation and age. The scope of the rules is concurrently widened to apply to all aspects of the employment relationship, from vacancy announcement to termination of employment. Hence the prohibition also applies to the ongoing employment relationship, including promotions and determination of conditions of pay and employment.
A new section 54 D assembles the exceptions from the prohibition of discrimination. Differential treatment is permitted where it is crucial to the performance of the work. Employees who are members of a workers’ organisation may also be treated differentially as regards pay and employment conditions set by a collective bargaining agreement. There will also be some latitude for differential treatment based on age where such treatment has an objective, factual purpose. The proposed amendments continue current rules permitting information to be obtained in connection with appointments, and permitting differential treatment of cohabiting homosexuals in regard to appointments to positions in religious communities and organisations.
A new section 54 J regulates the effects of differential treatment/discrimination and provides a legal basis to claim redress, compensation for non-economic loss, on a strict basis, in other words without regard to the employer's culpability.
The new provisions on equal treatment in employment in chapter X A also apply to the employer’s choice and treatment of self-employed persons and hired-in workers, cf. section 54 A subsection 3.
Chapter X B deals with enrolment and participation in organisations etc, and in section 54 L chapter X A is given corresponding application to enrolment and participation in workers', employers' or professional organisations.
Please find enclosed besl.O.nr58 (2003-2004) (Decision of the Odelsting) showing the content of the new chapters.
Two judgments are enclosed: (See also our reply under part IV)
- Judgment of 23 April 2001 from the Borgarting court of appeal concerning ethnic discrimination of a Pakistani cleaning worker/waiter who was awarded substantial redress for harm resulting from harassment.
- Supreme Court judgment of 15 September 1986 where the court found against a number of married women whose contention was that their employer was guilty of unlawful discrimination since he had attached importance to the fact that they were maintained by their spouses when the employer had selected them, ahead of other employees, for termination of employment when it became necessary to curtail operations.
Comments from the Committee of Experts on the Application of Conventions and Recommendations
In a Supreme Court judgment of 18 March 2002 (see enclosure), the first judge to deliver his opinion referred both to the Working Environment Act section 12 and to the proposed new section 8a on sexual harassment in the Equal Status Act as set forth in Proposition to the Odelsting no. 6 (2001-2002) and Proposition to the Odelsting no. 77 (2000-2001) concerning amendments to the Equal Status Act etc. The case concerned the validity of the dismissal of a professor against the background of sexual harassment of female staff and students.
Where public administration practice is concerned, mention can be made of a decision dated 29 August 2001 by the Gender Equality Ombud’s Board of Appeal. The Board ruled that a hotel's ban on the use of headwear at work contravened the Equal Status Act section 3. The Board of Appeal opined that the hotel was obliged to devise solutions which enabled staff to use headwear required by their religion along with their work uniform (see enclosure).
The Gender Equality Ombud should be well placed to give further information on violations of the law and measures to combat discrimination in employment.
Direct request, 2002
2. By virtue of Act of 26 March 2004, in force on 1 May 2004, section 55 A of the Working Environment Act was replaced and supplemented with new rules in a new chapters XA and B on equal treatment in employment. The new chapters extend the prohibited grounds of discrimination as described under point II in the report. None of these prohibited grounds directly includes social origin.
It is not clear from the proposed law on protection against ethnic discrimination, NOU 2002 no. 12, whether it will cover discrimination based on social origin. If the proposal is passed into law, it will apply to employment on a general basis, both in public and private enterprises. The introduction of a Bill to the Storting and ensuing enactment are expected to take place in the course of the next ILO reporting period.
3. The explicit prohibition against requesting information from jobseekers is revoked, but is covered by the general prohibition against discrimination in the new section 54 B. However, the exception from the prohibition against discrimination contained in the earlier section 55 A second paragraph of the Working Environment Act has been carried forward in the new section 54 D in a somewhat changed form and in a wider scope in relation to the new discrimination conditions, see under part II of the report.
The Labour Inspection Authority has no information on the practical application of exceptions from the prohibition of non-discrimination after the new chapter X A took effect.
4. The proposed law on protection against ethnic discrimination will in the event mean that workers in sectors currently excepted from the scope of the Working Environment Act, cf section 2 of the Act, will also be protected against discrimination in employment.
5. This question lies outside the Labour Inspection Authority’s competence.
6. The law proposal has been submitted to the Ministry of Local Government and Regional Affairs which is better placed to provide the desired information on progress made in framing this legislation and on conclusions drawn after the proposal was circulated for comment.
Attention is drawn to the following main points of NOU 2002: 12:
- the Act will apply on a generalised basis in all areas of society (also across the entire employment sphere), with the exception of family life and purely personal circumstances.
- the Act will contain its own purpose clause. The purpose will first and foremost be to provide comprehensive and effective protection for the individual against unfair discrimination based on the individual's ethnicity. In keeping with what is proposed as the Act's main rule, i.e. prohibition against ethnic discrimination, the main purpose will be to prevent discrimination. However, this purpose will have a broader compass, aiming to promote a wider-ranging facilitation of conditions for ethnic minorities by ensuring that everyone has equal rights and equal opportunities.
- the Act will provide explicit protection against both direct and indirect discrimination.
- a special prohibition against harassment on an ethnic basis.
- introduction of special protection against retaliation via a provision which expressly prohibits retaliation against a person who has filed or intends to file a complaint against a violation of the law.
- a general rule regarding shared burden of proof will apply in civil cases under the act against ethnic discrimination. This means that in cases where circumstances are present giving cause to believe that discrimination has taken place, such discrimination shall be considered proven unless the perpetrator renders it probable that discrimination has not taken place.
- the commission is also discussing the merits of introducing an information obligation for the individual alleged to have committed discrimination in violation of the law such that the person who considers him/herself discriminated against shall be permitted, prior to and independently of proceedings instituted under the act, to request certain information that can help to clear up the matter. The commission recommends that such a rule should be confined to appointments, in conformity with the previous section 55 A of the Working Environment Act.
Where dismissal with and without notice is concerned, dual protection against ethnic discrimination will be afforded by the Working Environment Act’s general rules prohibiting unfair considerations together with the new Act.
In its direct request 2002 in connection with Convention 111, the Committee asks the government to confirm that the Human Rights Act prohibits discrimination in employment and occupation on the basis of social origin.
The Human Rights Act incorporates inter alia the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 14, the International Covenant on Economic, Social and Cultural Rights, article 2 and the International Covenant on Civil and Political Rights, articles 2 and 26 on discrimination. Of these, the latter Covenant article 26 goes furthest in providing protection against discrimination. The article reads:
As is shown, the state is obligated to prevent discrimination and to protect against discrimination based inter alia on social origin. Incorporating the International Covenant on Civil and Political Rights in Norwegian law in the shape of the Human Rights Act does not, however, in itself fulfil this obligation. It is the state to whom this obligation falls, not private employers. Article 26 may nevertheless be of significance for the interpretation of other legal provisions. These shall as far as possible be interpreted in such way as to conform to Norway's human rights obligations, including those under Article 26 of the above Covenant.
We are not aware of legal decisions in which reference has been made to the International Covenant on Civil and Political Rights Article 26 or to the International Covenant on Economic, Social and Cultural Rights Article 14 in cases between private parties.
II – Employment/Labour market
Norway has ratified ILO Convention No. 122 concerning Employment Policy and submits regular reports regarding this Convention. The reports describe the situation on the Norwegian labour market in general, and also the situation for groups which it is important to keep a close eye on. These include persons with an immigrant background. Relevant statistical information is broken down by gender.
The Committee has asked Norway to provide statistics on the Norwegian labour market broken down by gender and ethnic background. This has been done in this year’s report on Convention No. 122, to which attention is drawn.
The Public Employment Service’s (Aetat) efforts to improve these groups' employment opportunities, and thereby counteract discrimination, form part of the general labour market policy and are described in the same report, to which attention is drawn.
Aetat’s guidelines for counteracting ethnic discrimination in connection with job placement, which were reproduced in the last report concerning Convention No. 111, still apply. The guidelines deal with registration of job vacancies and treatment of recruitment assignments.
On 1 July 2002 the Government presented an action plan (2002-2006) to combat racism and discrimination, stressing the need to take the guidelines forward. Aetat’s personnel policy declares the agency to be a racism-free zone and emphasises the importance of recruiting people with an immigrant background.
The Equal Status Act (now termed the ”Gender Equality Act”)
In the following an account is given of legislative changes made or proposed since the last raport. The account starts out from the previous report. The Committee of Experts has proposed a number of concrete queries to the Convention parties in regard to sexual harassment, which will also be replied to.
In the list – shown in the second paragraph on page 1 – of Conventions incorporated in Norwegian law by virtue of the Human Rights Act, we would also mention the Convention on the Rights of the Child. This Convention was incorporated in Norwegian law through the Human Rights Act by No. 86 of 1 August 2003. The amendment went on 1 October 2003.
Paragraph no. 3 on page 1 is amended to read:
”Under the EEA agreement Norway undertakes to implement legislative acts in the sphere of labour law, for example Directive 2002/73/EC of the European Parliament and of the Council, amending Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The Equal Status Act will be amended due to the implementation of the Directive 2002/73/EC. A consultation memorandum on these issues will be presented during summer 2004.”
The report’s first paragraph under point II on page 2 states: “Neither the Working Environment Act nor the Gender Equality Act contains legal definitions of the terms “discrimination” or “equal rights”, although the Gender Equality Act defines the term “discrimination”.” This sentence is deleted. Section 3 (general clause) of the Gender Equality Act defines what is meant by the terms direct and indirect discrimination. The act employs a broad understanding of these terms, and their content may change over time. A legal definition, on the other hand, is a definition in a law text of a word that is used in the act, and is intended to provide a unvarying explanation of how a word is to be understood, for example the definition of “employer” in the Working Environment Act section 4.
The first paragraph on page 3 of the report is replaced with the following:
”The purpose of the Gender Equality Act is to promote gender equality and it aims in particular at improving the position of women. The General Clause of the Gender Equality Act (section 3) prohibits direct as well as indirect differential treatment of women and men. Different treatment that promotes gender equality in conformity with the purpose of the Act is not in contravention with section 3. For example, when the University of Oslo applied ear-marking for women of a limited number of high-level academic positions, this was not deemed in contravention of the Gender Equality Act, taking into account the considerable under-representation of women holding professorships. The practice was however discontinued because the EFTA Court found the practice to be in contravention of the EU Equal Treatment Directive. Moderate positive action measures aiming to increase the recruitment of men to certain positions in child care, basic school and child welfare are also allowed. The motivation is to increase the number of men in heavily female-dominated areas where male rolemodels are very much needed.”
The text on page 4 and 5 of the report, up to the paragraph in parenthesis concerning the work done on the act against ethnic discrimination, is replaced with the following:
“The Ministry of Children and Family Affairs presented a proposition (Odelstingsproposisjon nr. 77 (2000‑2002) to the Parliament on 27 April 2001 regarding an overall revision of the Gender Equality Act of 1978. The amendments were adopted by the Parliament 14 June 2002. Most of the amendments are related to the working life and sharpens the obligation to work for equal status. Whereas the previous legislation required public authorities to facilitate equality of status between the sexes in all sectors of society, now also private employers and worker and employer organisations are required to promote equal status in their internal sphere of responsibility. This can serve to raise awareness of the collective responsibility for pushing the equals status effort forward. The obligation to work for equal status entails explicit requirements as to activity to this end, and that such activity must be goal‑oriented and planned.
After the mentioned amendments public and private undertakings are also required to give an account of the equal status situation in their annual reports or in annual budgets. This can bring a greater focus on equal status and the gender perspective at undertakings. The requirement applies to all undertakings ‑ publicly and privately owned ‑ which are obliged by law to prepare annual reports. Public undertakings which are not required to prepare annual reports are to give an account of the equal status situation in their annual budgets.
Protection against discrimination in connection with pregnancy, childbirth and leave of absence has been strengthened. There has been adopted an absolute prohibition against acts which leave a woman or man worse off than (s)he would have been, because of utilisation of leave of absence that is reserved for the one sex . This provision will inter alia help to strengthen men's position in relation to employers who have little understanding of the fact that also men wish to avail themselves of the statutory right to leave of absence.
According to the Gender Equality Act section 5, women and men are entitled to equal pay for work of equal value. After the amendments of 2002, the equal pay provision brings out more clearly the right to compare work across occupational divides or collective pay agreements. Factors central to assessing whether the same work done by women and men is of equal value, has been incorporated. No changes have been done to the concept of undertaking (virksomhet). Central and local government will continue to be regarded as separate sectors.
By the amendments in 2002, a new provision on sexual harassment has been inserted into the act. The provision contains a general prohibition against sexual harassment, and establishes that sexual harassment constitutes discrimination on the basis of sex.
The term “sexual harassment” shall mean unwanted sexual attention that is offensive the object of such attention. Sexual harassment is considered to be differential treatment on account of gender. The prohibition applies in all sectors of the society (but not enforced in the private sphere). The provision is to be enforced by the judiciary. The new provision also contains a responsibility for employers, organisations and educational institutions to prevent sexual harassment within their area of responsibility. The intention is that employers and other parties can create an antiharassment culture and share a sense of responsibility. This provision is enforced by the Gender Equality Ombud and the Gender Equality Board of Appeal. The question to be considered is whether the responsible party has done enough to prevent sexual harassment within his/her area of responsibility.
A rule regarding a shared burden of proof has been adopted in cases concerning discrimination by the employer on the basis of sex. The provisions implements the burden of proof directive (Council Directive 97/80/EC) which has been given effect for Norway via the EEA Agreement. The provision will have a somewhat wider scope than has so far been the case with the Working Environment Act sections 4 to 6. Moreover, it somewhat reduces the burden on the complainant to render it probable that discrimination has taken place.
Within the working life area, objective liability for damages in the event of breach of the Act has been adopted. This means that negligent or wilful contravention is not a condition for compensation. Furthermore, proof of financial loss is no longer a condition for compensation. This entails that compensation can also be paid for actual violation of the right to equal treatment.
According to the Gender Equality Act the provisions regarding the burden of proof and strict liability, do not apply to the provision of sexual harassment. Instead the general rules regarding liability for damages in the event of wilful or negligent contravention of the provisions of the Act applies. Thus, the employer or other people who subject people to sexual harassment will be liable if the harassment is wilful or negligent
The Gender Equality Board of Appeal is now clearly entitled to express its opinion in relation to collective pay agreements. The Labour Court of Norway is exclusively given the authority to decide upon the validity, understanding and existence of collective agreements. With a view to improving the possibility of obtaining an assessment of whether a collective pay agreement is counter to the Gender Equality Act, the Gender Equality Board of Appeal is now entitled to express an opinion in the particular case irrespective of whether the case concerns a concrete employment relationship. The Board of Appeal´s opinion is not binding, and omission to comply with it does not attract penalties or trigger an obligation to pay compensation. However, its opinion may put the spotlight on collective pay agreements which fail to take sufficient account of the Gender Equality Act, and encourage the bargaining parties to submit the agreement to the Labour Court.
Consultation memorandum on amendments to the Gender Equality Act
In June 2004 the Ministry of Children and Family Affairs circulated for comment amendments proposed to the Gender Equality Act, setting the deadline for submissions at 1 September 2004. The amendments are designed to ensure satisfactory implementation of the revised equal treatment directive (Directive 2002/73/EC of the European Parliament and of the Council on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions).
The following amendments are proposed:
- A prohibition against making use of retaliation against anyone who has filed a complaint against violations of the Gender Equality Act or who has started that such a complaint may be filed. Witnesses are also included.
- A prohibition against aiding and abetting violations of the Gender Equality Act.
- A widening of the provision that prohibits and provides protection against sexual harassment to include harassment on the basis of gender. It is proposed that this provision shall apply both within and outside working life.
- The employer’s strict liability for damages is widened to include instances of violations of the prohibition against sexual harassment and harassment on the basis of gender.
- The rule regarding shared burden of proof is widened to apply to non-working life, as well as to instances of sexual or other harassment on the basis of gender.
- The Gender Equality Appeals Board is empowered to impose coercive fines in the event on non-compliance with orders made by the agency.
- A deadline of three months for initiating a lawsuit against a decision handed down by the Gender Equality Appeals Board.
The Gender Equality Act has for the last 25 years been enforced by the Gender Equality Ombud and the Gender Equality Appeals Board. In light of new proposed legislation on the area of ethnical discrimination, the Government plans to present a proposition to the Parliament by the end of 2004 regarding the establishment of a new machinery which will enforce both the Gender Equality Act and the proposed act regarding ethnical discrimination.
In contrast to a regime of several enforcement machineries working with different kinds of discrimination, a common machinery will enable the building of a larger group of experts who have a strong general competence in discrimination-cases. It is currently being considered whether the new machinery should also enforce the anti-discrimination provisions of the Working Environment Act. A possible act on discrimination on the basis of disability may also be enforced by the new machinery.
In June 2003 the Ministry of Children and Family Affairs passed a consultation memorandum on the implementation of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) into Norwegian legislation. In March 2004 the government concluded that the preferred means of implementation would be to incorporate the Convention through the Gender Equality Act. Incorporation of the convention will contribute to elevate the status of the Convention, and will strengthen its position in Norwegian law. When the Convention is incorporated, the provisions of the convention will be given the same legal status as national laws.
The Ministry of Children and Family Affairs is planning on presenting a proposition to the Parliament during 2004 regarding legislative changes in the Gender Equality Act, including the incorporation of the CEDAW Convention.”
One of the remaining gaps in gender equality relates to male dominance in economic decision-making, especially in the private sector. A decision has been made jointly by the Government and the Parliament that the level of women’s representation shall be no less than 40 per cent on the boards of all large companies whether in the state or in public limited companies. Already, a law has entered into force to ensure a gender balance on boards in companies owned by the state. A similar law will enter into force for the public limited companies, unless the 40 per cent objective is reached by 2005 by means of voluntary action. Achieving this goal in the private sector is a great challenge.
Further to the gender mainstreaming strategy, the Government’s budget proposition for 2003-2004 for the first time contained an annex presenting gender based assessments in a number of budget areas. This is a voluntary process co-ordinated by the Ministry of Children and Family Affairs, and includes contributions from most ministries.
In its observations the Committee of Experts stated that “... the Committee would be grateful if the Government would provide information in future on the application and enforcement of the Equal Status Act and its impact in practice on equality between men and women in employment and occupation”. The Ministry of Children and Family Affairs has received the following statement on this matter from the Gender Equality Ombud:
After twenty years with an almost unchanged legislation, the Norwegian Gender Equality Act was revised in 2002. The revised Gender Equality Act passed through our Parliament (Stortinget) in April 2002 and entered into force 1 st> of July 2002.
The major changes were:
- A new section 1 A “The duty to promote gender equality”
- Section 3 concerning direct and indirect discrimination is changed with the result that the protection of women in respect of pregnancy, childbirth and parental leave is strengthened
- A new section § 8 A concerning sexual harassment at the workplace
- Section 16 The burden of proof for direct or indirect gender discrimination is placed on the employer
The most important change according to the Ombud is the new section 1A “The duty to promote gender equality”. This section implicates that the employers are responsible for positive changes at the workplace. It is no longer enough to be loyal only to anti-discrimination legislation.
The general duty to promote gender equality means that the public sector is no longer the only responsible for promoting gender equality. The revised Act introduces a statutory duty to promote equality by following a given recipe or strategy. Public authorities shall work actively, targeted and systematically to promote gender equality in all sectors of society.
Both private and in public sector enterprises have a corresponding duty within their enterprise in their capacity “as employer”. The same goes for the social partners who are required to make an active, targeted and systematic effort to promote gender equality in their sphere of activity. They have this duty both in their capacity as employers and as partners at the particular workplace as well as in their capacity as partners at national level in negotiations and policy making.
These new demands on public and private sector require action. It is no longer enough to act in accordance with the anti- discrimination principle. In addition the employer has a duty to improve the situation and to remove or subdue traditional differences between men and women.
To follow up this new duty, the Parliament decided that all enterprises shall make an annual account on gender equality. This goes for all enterprises that have a statutory duty to prepare an annual report, which means almost all enterprises in Norway.
The account shall consist of two parts: a) the actual state of affairs as regards gender equality and b) measures that have been implemented or that are planned with a view to promoting gender equality and preventing discrimination.
Public authorities and public enterprises that are not obliged to prepare annual reports shall give a corresponding account in their annual budgets.
In giving an account of the actual state of affairs the enterprises or public authority has to present statistics to some extent. Some areas ought to be covered in the account. These are gender based statistics on
- Working hours
- Use of parental leave and other social rights related to parenthood
- Statistics on sick leave
- Education/vocational training
- The number of men and women in different positions
- The use of positive action
This list is not exhaustive. The intention is to help the enterprises get started. For some enterprises there might be other items that need to be included.
In order to give an account of measures that have been implemented and measures that are planned to be implemented on gender equality it is necessary for the enterprise to fulfil the demands in section 1 A, that is the duty to work actively, targeted and systematically. In this way the duty to work actively corresponds to the duty to make the annual account.
The Act says nothing about the extent of the duties and leaves it to the enterprises themselves to decide which areas they want to focus on and how many activities they want to initiate or how fast they want the results.
For the public sector the review will be performed by the local governments or by the ministry responsible for the annual budget, which would be the Ministry of Finance.
These review bodies will however not appraise the quality of the yearly account. The Gender Equality Ombud is responsible for reviewing or following up the quality of the accounts. It is not possible for the Ombud`s office to check up on all annual reports and budgets. The review will have to be in the form of spot checks. However the Ombud considers it important to give the review high priority. In 2004 the Ombud plans to perform a review of all the ministries, all public enterprises of a certain size, the largest municipalities, as well as a number of the largest private enterprises.
By first of July 2004 the Ombud has reviewed more than 110 public enterprises, and 40 % of these produced an account that met the requirements of section 1 A. Another 40 % failed to meet the requirements of section 1 A, while 20 % of the enterprises failed to submit any report on gender issues at all.
So far the Ombud considers that public enterprises tend to focus too much on the recruitment of women, both in general and especially regarding leading positions.This is often highlighted as the main issue, despite the fact that women are already well represented in the enterprise. Sometimes the challenge is rather one of getting male employees into positions dominated by women.
Another main gender issue is equal pay for work of equal value.The accounts show that the situation regarding equal pay is not satisfying. Women generally receive a lower salary than men. This is partly because they tend to get positions placed lower in the hierarchy at the workplaces, partly because lower value is attached to categories of positions dominated by females. It is also a fact that female employees often earn less than male employees in the exact same position.
The new and strengthened legislation has been met with some negative comments from the employer’s union, but the critical comments have silenced. The Ombud believes that by giving good information about the new duties and emphasising the fact that each enterprise or public authority themselves decides the scale of the gender-equality account and the type of activity to be focused on, we have managed to reassure the employers and their union. In the Ombud`s opinion these new statutory duties to make active efforts and to prepare written accounts on gender equality will bring us an important step forward.
As regards the other amendments to the Gender Equality Act, the Ombud will give only short comments.
The Ombud has in recent years seen a continuing increase in the number of complaints received.. Cases related to discrimination in working life continue to predominate. Questions related to pregnancy and parental leave in particular have increased in number in recent years. The Ombud therefore thoroughly approves of the improved protection given to employees as regards pregnancy, childbirth and parental leave as a result of the amendments to section 3.
As mentioned above the law places the burden of proof for direct or indirect gender discrimination on the employer. This rule is highly practical and also necessary to make the enforcement of the law simpler and more efficient.
The new provision on sexual harassment requires employers to protect their employees against sexual harassment. The Act also requires all organisations in Norway to take preventive action against harassment. This provision also covers students. So far the Ombud has received few complaints regarding sexual harassment. However the Ombud believes that section 8 A covers an important area and that it was important to include this issue in the Gender Equality Act.
The Committee of Experts has also requested information on what impact regulations on affirmative action in favour of men, laid down pursuant to the Gender Equality Act section 3a, have had on the proportion of en employed in the education and care of children.
Regulations on affirmative action in favour of men went into force on 17 July 1998. The regulations provide for a moderate quota system for men in appointments to positions where the main function is education or care of children, and in admissions to training programmes for such positions.
Since the mid-1990s the Ministry of Children and Family Affairs has conducted a systematic drive to get more men employed at day care centres. In 1991 3 per cent of employees in day care centres were men, rising to 8 per cent in 2004. However, no study has been made of the impact of the regulations on affirmative action in favour of men, making it difficult to be certain whether the increase in the number of men in day care centres is due to the regulations or to other circumstances, such as support for network building among men in day care centres, cf. the website www.mibnett.no. The Ministry of Children and Family Affairs recently presented an Action Plan for Gender Equality in Day Care Centres for the period 2004-2007, which inter alia contains measures designed to achieve the objective of a 20 per cent proportion of male employees in day care centre by the end of 2007.
The proportion of male teachers in primary and lower secondary schools fell steadily in the 1990s. in 1992 the proportion was 36 per cent. By 2002 it had fallen to 30 per cent (Source: Statistics Norway). The Ministry of Education and Research views this trend with concern. In June 2001 the Ministry organised a seminar focusing on men in the school system at which attention was drawn to the importance of building networks among men working in schools. Based on this, the Ministry took the initiative towards establishing a website devoted to men working in schools – www.meniskolen.no. This website is run by men in schools, and receives financial support from the Ministry. In the spring of 2002 the Ministry of Education and Research ran a campaign to recruit men to the teaching profession. What effects will result from this campaign or from the amendment to regulations permitting preferential treatment of male applicants for jobs in primary and lower secondary schools will only become clear in a few years’ time when present day teacher-training students have completed their courses and apply for jobs. The Ministry will closely monitor developments in this respect in conjunction with the Directorate of Education. See also Annex 1 containing a statistical overview of developments in primary, lower secondary and upper secondary education in the period 1992-2002.
The proportion of men admitted to teacher training rose in 2002, and has continued to edge up.
Please find enclosed three judgments:
- Judgment of 23 April 2001 from Borgarting court of appeal
- Supreme Court judgment of 15 September 1986, and
- Decision of 29 August 2001 from the Gender Equality Ombud’s Board of Appeal
This report will be communicated to the Confederation of Norwegian Business and Industry, the Confederation of Trade Unions in Norway, the Norwegian Shipowners’ Association and the Norwegian Seamen’s Union.
Oslo, August 2001